Citation Nr: 1755812 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 16-00 146A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for Parkinson's disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Spouse ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1954 to January 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a provisional rating in May 2013 and a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held at the RO before a Decision Review Officer in April 2016 at the RO. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran served on active duty in Thailand from July 1973 to July 1974 on a Royal Thai Air Force Base as a communications specialist whose daily work duties included being near the air base perimeter. 2. The Veteran is diagnosed with Parkinson's disease. CONCLUSION OF LAW The criteria for entitlement to service connection for Parkinson's disease have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Any error in VA's duties to provide notice or assistance in this case is harmless, given the fully favorable determination for the claim on appeal. Service Connection for Parkinson's Disease The Veteran asserts that he has Parkinson's disease as a result of exposure to herbicide agents during military service while stationed in Thailand at a Royal Thai Air Force Base during the Vietnam Era. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In addition, several statutory presumptions operate in connection with section 1110. Of particular relevance, 38 U.S.C. § 1116 provides that, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including Parkinson's disease, are presumptively service-connected, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a)(1), (a)(2); 38 C.F.R. § 3.309(e). VA has developed specific evidentiary procedures to verify whether a Veteran was exposed to herbicides in locations other than Vietnam. VA's Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, para. 5, was adopted for application when the Veteran alleges exposure to herbicides in Thailand. It directs, in pertinent part, that if a veteran served in the U.S. Air Force in Thailand during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs) as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed such veteran near the air base perimeter as shown by the evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure should be conceded on a direct or facts-found basis. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As a preliminary matter, the Veteran's medical records show that he has Parkinson's disease. An October 2010 letter from Dr. B.A.R. notes that the Veteran was diagnosed with Parkinson's disease in the spring of 2008 by Dr. H. VA treatment records reflect management of Parkinson's disease by a VA primary care physician. Thus, a current disability is present. In a June 2012 VA Form 21-0820, Report of General Information, the Veteran claimed that he was exposed to herbicide agents when he rode his bike around the perimeter of Nakhon Phanom RTAFB to get to work. Also, the Veteran claimed that he was on the U.S. softball team and they were sent to different RTAFB's to play other teams; specifically the Veteran believes they went to U-TAPAO, Ubon, and Udorn. The Veteran also alleged the softball team went to Saigon, Vietnam to play. The Veteran's performance evaluation reports show that he had service at Nakhon Phanom RTAFB from July 1973 to July 1974 and that he was a communications specialist. Included in his list of duties was a statement indicating that he was responsible for support of the 7AF/USSAG operations and oversaw the installation of HY-11 equipment and accompanying conversion on the base. In a June 2012 letter from the Veteran, he asserted that he rode his bicycle to work around the perimeter because it was safer than walking through other areas where there was considerable grass with dangerous snakes. He also affirmed his assertion that his participation on the softball team led to travel to U-TAPAO, Ubon, and Udorn, as well as a trip to Saigon, Vietnam. A February 2013 VA memorandum found that VA was unable to confirm that the Veteran was exposed to Agent Orange while stationed at Nakhon Phanom in Thailand. In a February 2013 Statement in Support of Claim, VA Form 21-4138, the Veteran's spouse noted that she remembered that the Veteran was at Nakhon Phanom RTAFB from October 1973 to November 1974. The Veteran also submitted photographs allegedly taken at that time he was in Nakhon Phanom RTAFB, showing him standing in front of his hooch, living quarters, and on the softball team, as the pitcher. In March 2013, the Veteran submitted evidence showing that on or about 13 July 1974 the Veteran was included on a list of airman going on Permissive TDY to U-TAPAO RTAFB for the purpose of participating in the 1974 All Thailand Slow Pitch Softball Tournament for 9 days. In a March 2014 statement from the Veteran, he reiterated that he was at Nakhon Phanom RTAFB for a year between 1973 and 1974 and rode his bike around the perimeter of the base in order to avoid the dangerous snakes. On a January 2016 VA Form 9, the Veteran asserted that he was outside the base as a communications noncommissioned officer and as a (base)ball player in Thailand. At the April 2016 DRO hearing, the Veteran re-asserted that he played on the softball team and traveled outside of Nakhon Phanom RTAFB in order to play teams at other RTAFBs. The Veteran also confirmed that he rode his bicycle almost daily around the perimeter of Nakhon Phanom and would sometimes walk around the perimeter also. The Veteran also testified that he was a communications noncommissioned officer and that his place of duty was only a couple hundred yards from the perimeter. Further, the Veteran testified that they often left Nakhon Phanom to go into downtown, which required going through the gate at the perimeter and waiting in the taxi parking lot for a ride. The Veteran referred to the photographs in the claims file, specifically the one he alleges was taken in front of his hooch and sent to his mother in 1974, as it was dated on the back in his mother's handwriting. The Veteran's representative asserted that in the background it is apparent that the perimeter is very close and therefore it is clear that the Veteran slept right next to the perimeter. The Veteran testified that he did not have consistent guard duty, and when he did it was mostly in his own secured area. Finally, the Veteran testified that he noticed the spraying of herbicide agents around the perimeter by helicopters and low-flying planes during the day and night. Upon weighing the evidence in the record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran was exposed to herbicide agents during his service in Thailand. Accordingly, he should be entitled to the presumption of service connection under 38 C.F.R. § 3.309(e). In this case, the evidence of record establishes that the Veteran served in Thailand from July 1973 to July 1974. In the criteria set forth in the VA's Adjudication Procedures Manual, M21-1MR Part IV.ii.1.H.5, for a veteran who served in the U.S. Air Force in Thailand during the Vietnam Era at one of the specified RTAFBs in a capacity that otherwise placed such a veteran near the air base perimeter as shown by the evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide agent exposure should be conceded on a direct or facts-found basis. In this case, the Veteran served in Nakhon Phanom, which was one of the specified RTAFBs. Performance evaluation reports from his superiors indicate that the Veteran was required to perform communications and management tasks near the perimeter. Similarly, the Veteran submitted numerous lay statements and provided testimony at the DRO hearing describing in detail his specific duties which placed him in contact with the base perimeter as well as his daily activities and exposure to the perimeter. These include living near the perimeter, riding his bicycle or walking along the perimeter to avoid dangerous snakes through the base, and travelling outside the RTAFB as a member of the base softball team. The Veteran is competent to provide statements regarding the location of his duties in service since they involve the Veteran's recollection of his location at a particular moment in time, which is something the Veteran would be qualified to provide information about. There is nothing in the record to suggest that the Veteran's statements are not credible. His assertion that his daily activities consisted of functioning at or very near the perimeter were not contradicted by any of the records provided. The Veteran's statements should also be afforded more weight because they are supported by contemporaneous records at the time. The statements found in the Veteran's performance evaluation, his wife's lay statements, and his consistent lay statements and testimony indicated that the Veteran's work responsibilities as well as daily life at Nakhon Phanom RTAFB supports the Veteran's assertion that he had contact with the base perimeter. While the February 2013 VA memorandum indicated that it was unable to confirm that the Veteran was exposed to herbicide agents during his service in Thailand due to lacking information from the Veteran, the February 2013 VA memorandum did not address that the Veteran had a confirmed year of service a Nakhon Phanom RTAFB and undisputed travel to other RTAFBs. More importantly, VA's Adjudication Procedures Manual specifically sets forth that herbicide agent exposure as defined at 38 C.F.R. § 3.307(a)(6)(i) is conceded when (1) a Veteran served at Nakhon Phanom during the Vietnam Era and (2) was "near" the air base perimeter as shown by evidence of daily work activities, performance evaluation reports or other credible evidence. M21-1MR Part IV.ii.1.H.5. There is no dispute that the Veteran served at Nakhon Phanom during the Vietnam Era, and the Board finds that the Veteran's duties regularly placed him on the air base perimeter. In sum, the Board finds that credible evidence supports a finding that the Veteran was frequently near the air base perimeter during his service at Nakhon Phanom in Thailand. Therefore, the Board resolves any reasonable doubt in favor of the Veteran and concludes that he was exposed to herbicide agents during his service in Thailand. As such, he is entitled to the presumption of service connection under 38 C.F.R. § 3.309 for his Parkinson's disease and service connection is granted. ORDER Service connection for Parkinson's disease is granted. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs